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When Congress Comes Back: How It Can Help Protect the Internet

Now that the election is over, Congress can get back to work doing the people’s business. And if that work is going to affect online expression, innovation, and/or privacy, it should start with a simple proposition: bring in the nerds (aka experts) and Internet users who care deeply about protecting their digital rights.

Just about a year ago, we watched in horror as ranking members of the House Judiciary Committee did their level best to ram through the Stop Online Piracy Act (SOPA), a massive piece of legislation that would have undermined basic Internet architecture and security, chilled innovation and free speech, while conceding that they didn’t really understand the legislation and the collateral damage it would cause. Standing against them were a few brave legislators, like Representatives Zoe Lofgren, Jason Chaffetz, Darrell Issa and Jared Polis, who suggested that maybe, just maybe, it would be a good idea to hear from the numerous folks who had expressed concerns about the bill, including the widely-respected engineers who helped create the Internet, law professors, human rights groups, and ordinary Internet users.

One key to winning that battle is to make sure that, from now on, the folks in D.C. make sure they understand the nature of the problem any given bill is intended to address, and the costs and benefits of any given solution. To do that, they need to hear from people with a deep understanding of Internet technology, policy and civil liberties. They also need to hear from the Internet users who will be affected. Representative Lofgren agrees, and she is promoting a bill, the Global Free Internet Act of 2012, that will help the U.S. government do just that. It creates a task force

that identifies, prioritizes, and develops a response to policies and practices of the U.S. government, foreign governments, or international bodies that deny fair market access to Internet-related goods and services, or that threaten the technical operation, security, and free flow of global Internet communications.

The task force would include four people nominated by the public, as well as others appointed by Congressional leadership and key Federal agencies. Together, they will advise Congress and “coordinate the activity of the U.S. government to respond to threats to the Internet.”

To be clear, the Task Force is an advisory body – it does not have the power to regulate the Internet. What is can do is make sure that there is at least one entity in Washington that is dedicated to (1) protecting the Internet as an engine of free speech and innovation; (2) keeping the public involved in making Internet policy; and (3) helping to bring the “nerds” into the conversation and giving them a means to sound the alarm when new bills, treaties, or government actions pose a threat to Internet speech or innovation. Having a task force to champion these values within the federal government should not only help prevent another SOPA/PIPA debacle, but also help generate smart Internet policy.

What kind of things might a smart Internet agenda include? Well, we have a few ideas (and ways for you to get the ball moving):

Patent reform. We saw just how broken the software patent system was when Apple won a patent suit against Samsung for devices that were, in the simplest terms, rectangles with rounded corners. Samsung was left on the hook for $1.05 billion in damages – a $1 billion wake-up call for anyone who thought software patents were still functioning as a tool to foster innovation. Congress needs to get serious about patent reform, and if you’d like to lend your voice to the cause you can do so here.

ECPA reform. The Electronic Communications Privacy Act is sorely out of date. This federal privacy law only requires a warrant for the government to search your emails until they are over 180 days old. That same arbitrary 6-month privacy loophole applies to any electronic communication – instant messages, Facebook messages, or even text messages. And the statute doesn’t even address location information, so the government claims that it can track your location using your phone without ever going to a court and getting a warrant. As we work with the courts to establish that the Fourth Amendment protects your online communications, Congress should get serious about updating ECPA to bring it in line with the Constitution. You can send them a note to that effect with a few clicks of a button.

Anti-SLAPP Legislation:Protecting Bloggers’ Rights. Matthew Inman, the comic genius behind The Oatmeal, got to see first hand how the legal system can be abused to try to silence online critics. He was accused of defamation based on truthful articles he had written on his webside, followed by a legal demand for $20,000. When Inman not only failed to comply, but used the demand to fuel an online fundraising campaign for the American Cancer Society and the National Wildlife Federation, he got hit with a lawsuit that was nothing short of bizarre. EFF helped Inman fend off this bogus attack, and now we’re turning our attention to passing laws that would protect bloggers all over the country. When Congress sets its agenda for the coming year, we want them to prioritize passing strong anti-SLAPP legislation to ensure bloggers have the tools they need to fight back against lawsuits whose sole purpose to to silence online speech. Join us.

Of course, the most important thing Congress can do to protect the Internet is to not pass legislation that infringes on free speech, innovation, and individual privacy. But there are also positive steps that Congress could take to protect our online rights. As we move into a second Obama term, the priorities of the Internet should be high on the agenda for our policymakers. We hope Lofgren’s bill moves forward, and we can finally have a task force of Internet experts in place to spot both dangerous bills and policies and good ones that makes sense for today’s technology.